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Several of the remarks and articles presented in this symposium have addressed conflicts of interest arising during the provision of legal counsel to individuals who are elderly, including specific conflicts of interest implicated by estate planning, retirement planning, and long-term care planning. Topics examined thus far include conflicts of interest with respect to the application of rules of confidentiality within state rules of professional conduct to elderly clients with impaired decision-making capacity; conflicts of interest involving representative payees for Social Security benefits; conflicts of interest in distributions when parents enter into marriages that are unprotected by law; and conflicts of interest inherent in powers of attorney, among others.

This article will diverge slightly from the prior articles and focus instead on conflicts of interest present in the involvement of individuals who are elderly with impaired decision-making capacity in clinical and experimental medicine when legal counsel and advanced health care and research participation planning have not taken place. More specifically, Parts I and II of this article will identify conflicts of interest that arise in the contexts of clinical medicine and human subjects research when an elderly patient with impaired decision-making capacity has not executed an advanced health care directive, an advanced biomedical or behavioral research directive, or other similar document, and for whom a guardian has not been appointed. Parts I and II also compare and contrast illustrative state approaches for identifying and managing these conflicts to determine whether one state’s approach to managing such conflicts is preferable to another.

Part III of this article compares and contrasts approaches taken by illustrative state rules of professional conduct for managing conflicts of interest in the context of legal representation. Part IV compares the approaches used in legal representation to the approaches used in clinical medicine and human subjects research. One purpose of these comparisons is to identify options for managing conflicts in different professional settings and to determine whether the approach of one professional setting is superior to another. Part IV finds that the law imposes more stringent duties on attorneys regarding the identification and management of conflicts of interest with respect to their clients as opposed to physicians with respect to their patients and researchers with respect to their human subjects. Part IV also finds that the conflicts of interest that can arise due to the lack of advanced health care and research participation planning are as substantively concerning, if not more so, than the conflicts of interest that arise during the provision of estate planning, retirement planning, and long-term care planning.

For these reasons, this article joins the already robust law review and other literatures that urge advanced health care and advanced research participation planning to minimize conflicts of interest that could arise when a surrogate, in the absence of a formally appointed agent or guardian, would like to consent to the administration, withholding, or withdrawal of treatment or consent to research participation on behalf of an elderly individual with impaired decision-making capacity. As such, this article hopefully serves as a nice capstone to the other pieces in this symposium by providing yet another reminder that legal planning, even with the conflicts of interest identified by the other authors in this symposium, is almost always superior to the lack of planning. This article also, however, proposes a novel solution for health care and research-related conflicts: state laws governing conflicts of interest in clinical medicine and human subject research should consider borrowing approaches to conflicts management that are set forth in state rules of attorney professional conduct.

Publication Citation

117 Penn St. L. Rev. 1291